No finding of disability discrimination following the dismissal of a disabled employee

Gareth Matthews, Head of Employment, examines a recent decision in the Employment Appeal Tribunal, which determined that it was not discriminatory to reduce a disability payment, as receipt of the payment itself (whether reduced or not) meant that the claimant was not being treated less favourably than his non-disabled counterparts.

Facts

In McAllister v Revenue and Customs Commissioners [2022], the Appellant, Mr McAllister worked for HMRC. He was off work for prolonged periods, with some of these absences relating to his mental health issues. Between 2016 and his dismissal, Mr McAllister was absent from work for a total of 245 days on 23 separate occasions. In late 2018, following a seven-month absence with no prospect of Mr McAllister being fit to return to work in any capacity, HMRC concluded that the situation was impacting productivity and staff morale and that all reasonable adjustments had been exhausted. Mr McAllister was therefore dismissed, effective from 28 December 2018. At the time of his dismissal, Mr McAllister had been absent for seven months and was unfit to return to work in any capacity.

Law

The reason for the dismissal was ‘capability,’ therefore, Mr McAllister was entitled to a payment under the Civil Service Compensation Scheme (CSCS) which compensates civil servants who are dismissed in such circumstances circumstances. However, the compensation was reduced by 50% because Mr McAllister did not respond to phone calls, delayed returning important forms, displayed disruptive behaviour, and arrived late during a phased return to work. Mr McAllister successfully appealed against the reduction of his CSCS payment to the Civil Service Appeal Board (CSAB), an independent body, which increased the award from 50% to 80%.

It was accepted that Mr McAllister was a disabled person under the Equality Act 2010. He brought a claim in the ET for discrimination arising from disability under section 15 of the Equality Act 2010 concerning his dismissal and HMRC’s initial reduction of the CSCS payment.

Decision

The ET rejected the discrimination claim concerning Mr McAllister’s dismissal. Although the dismissal arose as a consequence of his disability, i.e. his absence from work, any treatment was proportionate to achieving the aim of maintaining a fair and transparent sickness management regime and the efficient use of staffing resources.

Regarding the CSAB reducing the compensation payment, the ET found that although distributing the fund fairly and economically constituted a legitimate aim, the 50% reduction was disproportionate when a payment of 80% of the sum that could be awarded would have been a less discriminatory measure. It was concluded that the 20% reduction was proportionate and did not breach section 15 of the Equality Act 2010.

The EAT upheld the Tribunal’s decision that dismissing an employee for long-term disability-related absence was not discriminatory. However, it ruled that the Tribunal had erred in finding that reducing a payment under the Civil Service Compensation Scheme based on the employee’s conduct was discriminatory.

Comment

More generally, the actions of an employer, when dealing with benefits given to disabled employees, should be supported by legal advice on the risks of each individual case, particularly where the full entitlement is not being given.